Austin Texas Estate Planning Blog

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Why You Need a Will: Have your say!

September 21, 2021 • | Law Office of Zachary D Kamykowski, PLLC
wait, what?! ...texans without an opinion? Here in Texas, even in Austin, we like to tell people what we think about all manner of things. I hear all kinds of opinions everywhere I go. You've got the "I'll never buy an electric truck" crowd...and the "But, 5!-6!-3! horseys!" crowd. You've got the "Let's just expand […]

wait, what?! ...texans without an opinion?

Here in Texas, even in Austin, we like to tell people what we think about all manner of things. I hear all kinds of opinions everywhere I go. You've got the "I'll never buy an electric truck" crowd...and the "But, 5!-6!-3! horseys!" crowd. You've got the "Let's just expand I-35" crowd...and the "Let's cap I-35 and build a park or boulevard" crowd. There's the "but, in California, you need a will like a rattlesnake needs a violin" crowd. And, who among us Texans are in the "how many more Californians could possibly move here" crowd.

I've yet to meet a Texan who doesn't have a strong opinion about something. And when given an opportunity - however in/appropriate (No, I don't want to hear your theory about why young men are eschewing college these days, whilst waiting for my tacos at Veracruz All Natural) - I've never known a Texan, much less an Austinite, getting shy at the chance to share their opinion about something or another.

So, why is it, when given the opportunity to express one's opinion, one's will - so to speak, about how one would like one's assets divvied up after that last gallop into the sunset, less than half of us have a will?

What if you don't get a will?

If you don't have a will, Texas decides who inherits your stuff. I guess that's better than DC. But, have you ever looked at the members of the Texas House and Senate?

I don't know about you, but I wouldn't let any one of them manage the fudge counter at a Buc-ee's.

But, there they all are, making $7,500 a year, to meet every other year to solve Texas' most pressing problems.

So, if you don't have a will, you're essentially tasking this clown bus with deciding how the fruits of a lifetime of your labor should distribute after you pass.

Some court-appointed attorney will serve as your executor.

So a judge, you don't know, will appoint an attorney, you don't know, to distribute your hard-earned assets according to the whims of the Texas legislature.

but maybe because i'm married, i don't need a will?

Most people have a vague understanding that Texas is a community property state. So, they assume that they don't need a will because everything is just community property. Therefore, everything will just go to one's spouse.

That may be the case for some couples.

However, if there are any "complications" (i.e., children, etc.), it may not necessarily be so.

Community property consists of "the property, other than separate property, acquired by either spouse during marriage." (see Sec. 3.002 of the Texas Family Code).

Separate property is that "property owned or claimed by the spouse before gift, devise, or descent...and" personal injury awards. (see Sec. 3.001)

If there are no children or all of your children are with your surviving spouse, then yes, the community property will pass to them.

But, if you do have children, any children, anywhere, anyhow (by this time, it's much too late to go into all of that), outside of the marriage, 1/2 will go to your surviving spouse, and 1/2 to the children of the deceased. If you have more than one child of the deceased outside of the marriage, then those children will share their 1/2 equally.

With regard to separate personal property, 1/3 will go to the surviving spouse, and 2/3 to the children, equally.

With regard to separate real estate property, 1/3 will go to the surviving spouse subject to a life estate, and 2/3 will go to the children, equally, subject to a life estate.

but maybe because i'm not married, i don't need a will?

If you're not married, there is no community property.

In that case, all of your children will share your property equally.

If any of your children are deceased, then that child's share will split among their children equally.

If you don't have any children, and both of your parents are alive, each one will get 1/2 of your property. So, even if they abandoned you in your formative years and living with their third consecutive someone younger than you, that "parent" will receive 1/2 of your stuff.

alright, what will happen to my children?

If the reasons above don't move you to understand why you need a will, perhaps thoughts of your children, might.

If your spouse, or the other parent, survives you, then they will retain the right to care for the children. However, if they don't goodness: who knows?

In a will, you have the opportunity to decide who will take care of your children in the event neither of their parents is able to do so. This is not an easy decision - because, your siblings are each a mess in their own way. If they seem that they have it perfectly together - you probably aren't close enough to them. But, no matter how together they may seem or be, their significant other raises some questions, amirite?

But, the point is, no matter how less than perfectly suitable whoever you name as your child/ren's guardian - at least they are a known quantity.

If you don't name a guardian, then they go to your parents....or maybe the other parent's parents. Who can guess which set a court will choose?

Maybe you don't want your parents (or your in-laws) to repeat all the mistakes they made with you (or your co-parent) wth your child?

And if neither set of grandparents are alive or judged capable of guardianship, then the court is free to appoint a guardian.

Given that you have the ability to make this decision now...why risk the alternative?

Free stress test and other resources

If you want to exercise your right to have your opinions about how your assets should distribute after you pass, I encourage you to contact me.

If you are still uncertain, take this FREE stress test and find out how your lack of planning will affect your loved ones.

I would also recommend the other FREE resources that you can find on my website. These will help you to get started thinking about the value of planning for you and your family.

Law Office of Zachary D Kamykowski, PLLC

(By Appointment Only)

14425 Falcon Head Blvd
Bldg E-100
Austin, TX 78738

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